Public Law

Separation of Powers Cases

R (on the application of Miller) v Prime Minister [2019] UKSC 41

Key Point

• The Prime Minister, exercising the prerogative of the Crown, cannot prorogue Parliament and prevent it scrutinising the Government without reasonable justification

Background

• Prorogation is a suspension of Parliament that happens every year to mark the end of the Session (Parliamentary Year)
• The power to prorogue Parliament is a prerogative power, exercised by the Government on behalf of the Crown
• In late 2019, three years on from the Brexit referendum, the UK was approaching its deadline to leave the EU, with a minority Conservative government wishing to leave on the deadline, and many other parties wishing to delay it
• It was widely believed that Parliament would force legislation through, against the will of the Government, to extend the deadline
• Parliament had at this point been in session for the longest time in four centuries

Facts

• In August 2019 it was announced the Queen, on the advice of the Prime Minister, had given her consent to prorogue Parliament that September.
• The planned prorogation was for five weeks – unusually long
• This was widely seen as the Government attempting to prevent having their Brexit agenda blocked by Parliament
• An application for judicial review was made in the High Court by Gina Miller on the grounds that this violated the principles of parliamentary sovereignty and parliamentary accountability
• The case was rejected as non-justiciable in the High Court, but in the Scottish Court of Session, a similar bid was successful.
• To resolve these differences, the case was granted an expedited appeal to the Supreme Court, in which he maximum eleven justices heard the case

Issues

1. Is the lawfulness of PM’s the advice to the Queen justiciable?
2. If it is, by what standard is its lawfulness to be judged?
3. By that standard, was it lawful?
4. If it was not, what remedy should the court grant?